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America's Barbaric Death Penalty
By Stephen Lendman
6-22-11

Numerous organizations oppose capital punishment, including
the World Coalition Against the Death Penalty (WCADP), an alliance of about
60 NGOs, bar associations, local bodies and unions, founded in May 2002.
In 2003, it established October 10 as the World Day Against the Death Penalty.

On October 10, 2011, the 9th World Day seeks to raise
awareness of the inhumanity of capital punishment from sentencing to execution.
In fact, death row inmates endure horrific emotional and physical suffering
under appalling conditions with little regard for their well-being.

Last year, the 8th World Day was "dedicated to the
USA which executed 52 people and handed down 106 death sentences in 2009."
America is one of the few federalists countries empowering states with
this right. Presently, 34 use it. The others opt out, Illinois the latest
one abolishing it, although 10 retentionist states haven't executed anyone
for 10 or more years.

Amnesty International (AI) calls capital punishment "the
ultimate denial of human rights. It is premeditated and cold-blooded killing
of a human being by the state. This cruel, inhuman and degrading punishment
is done in the name of justice."

In fact, there's nothing just about state-sponsored murder,
especially against wrongfully accused victims. In America, they're mostly
poor Black and Latinos, denied due process and judicial fairness. The system,
in fact, is rigged to convict even known innocent defendants, the most
famous being Mumia Abu-Jamal.

Falsely convicted in July 1982, he's been on death row
for nearly 29 years. The Supreme Court repeatedly denied him a new trial
despite clear prosecutorial and judicial misconduct, racial discrimination,
perjured testimonies, and political intent to hold him culpable for a crime
he didn't commit.

Kevin Cooper is less well known, also languishing on
death row despite his innocence, another victim of American injustice because
he's poor, Black, and easy prey. An earlier article on him can be accessed
through the following link:

More about his case below and US 9th Circuit Court of
Appeals Judge William A. Fletcher's belief in his innocence.

The Chicago-based Campaign to End the Death Penalty (CEDP)
aims to abolish it in America, hoping to grassroots activism will achieve
it. The US is the only Western country still using it. In addition, since
1990, 30 countries abolished it, and among the 74 still executing, four
are the main abusers - America, China, Vietnam and Iran.

Currently, about 3,200 US prisoners are on death row.
In 1972, the Supreme Court (in Furman v. Georgia) said:

"the imposition and carrying out of the death penalty
constitutes cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments, (and so) harsh, freakish, and arbitrary" to
be constitutionally "unacceptable." The decision voided 40 death
penalty statutes, thereby commuting the sentences of over 600 death row
inmates nationally.

In 1976 (in Gregg v. Georgia, Jurek v. Texas, and Proffitt
v. Florida - collectively called the Gregg decision), the High Court reinstated
the death penalty and let states impose it. The Court held that new death
penalty statutes in these states were constitutional under the Eighth Amendment,
even with cruel and unusual punishment clauses that should have banned
them.

In Gregg v. Georgia, the Supreme Court called the death
penalty not inherently cruel, only "an extreme sanction, suitable
to the most extreme of crimes."

In fact, it's extremely cruel and barbaric, flouting
due process, judicial fairness and humanity, violating equal constitutional
protection. It disproportionately affects people of color, the poor, and
disadvantaged. It legitimizes state-sponsored murder, innocent as well
as guilty prisoners affected. Moreover, it's ineffective in deterring crime,
and unconscionable in civilized societies.

In 2000, former Illinois Gov. George Ryan declared a
moratorium on capital punishment after 13 prisoners were found innocent
and released.

On January 11, 2003, two days before leaving office,
he then cleared death row, commuting sentences for 163 men and four women
to life imprisonment. He also declared a moratorium on future executions,
saying:

"The facts that I have seen in reviewing each and
every one of these cases raised questions not only about (their innocence),
but about the fairness of the death penalty system as a whole. Our capital
system is haunted by the demon of error: error in determining guilt and
error in determining who among the guilty deserves to die."

Calling Illinois' death penalty system "arbitrary,
capricious, and therefore immoral," he ended his gubernatorial tenure
by pardoning four men and issuing a blanket commutation for all state prisoners
on death row, adding "The Legislature couldn't reform it, lawmakers
won't repeal it, and I won't stand for it - I must act."

In January 2011, both Houses of Illinois' legislature
voted to end capital punishment, Gov. Pat Quinn officially abolishing it
in March, saying it's impossible "to create a perfect, mistake-free
death penalty system."

As a result, Illinois joined 15 other states and the
District of Columbia (including New York, New Jersey, Minnesota, and Massachusetts)
without capital punishment, what should have been abolished federally long
ago.

Since 1976, after the death penalty's reinstatement,
over 1,250 US inmates have been executed, mostly in southern states, and
more than 35% in Texas alone. During his six-year gubernatorial tenure,
George Bush was a modern-day Pontius Pilate, a Texecutioner, a serial killer
responsible for 155 "homicides," showing his callous disregard
for human life, evident globally as president.

Reasons to Oppose the Death Penalty

Its barbarism alone warrants banning it unconditionally.
Other factors make it more convincing, including:

(1) Its application is racially biased with regard to
defendants and victims, CEDP saying minority lives are less valued than
whites. Blacks are about 12% of the population, but comprise 42% of death
row prisoners. In Ohio, it's over 50%, and in southern states like Virginia,
Arkansas, Mississippi, North and South Carolina it's more than 60%. Since
1776, America executed over 18,000 prisoners. Only 42 involved a white
person for killing a Black, and according to AI, more than 20% of executed
Black defendants were convicted by all-white juries.

(2) Poor people are unfairly affected, former Supreme
Court Justice William O. Black quoted saying, "One searches our chronicles
in vain for the execution of any member of the affluent strata in this
society." In other words, those able to afford good legal representation
avoid death row. Over 90% charged with murder are poor, unable to pay for
a proper defense, instead relying on inexperienced counsel or public defenders
with little interest in their case.

(3) Death sentences condemn innocent victims to die.
Since 1973, 123 people in 25 states were discovered innocent and released.
And they may be the tip of the iceberg, many others less lucky because
authorities won't admit mistakes and often bogusly convict maliciously
or for other unjustifiable reasons. Criminologist Michael Radlet explained
that from 1900 - 1992, 416 documented cases of innocent people were convicted
of murder or capital rape, one-third given the death sentence.

(4) Death penalty convictions don't deter crime. For
example, southern states have a higher murder rate than northern ones even
though 80% of executions occur there.

(5) As the Supreme Court said in 1972, "the death
penalty constitutes cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments." Even with no hitches, it's barbaric, but
when botched it inflicts severe, sustained pain. As a result, in 2007,
executions were on hold in over a dozen states, and botched ones put lethal
injections under more scrutiny.

In 2005, The Lancet published a medical researcher team
report, finding "that in 43 of the 49 executed prisoners studied,
the anesthetic administered during lethal injection was lower than required
for surgery. In 43 percent of cases, drug levels were consistent with awareness."
As a result, executions involved extreme pain, amounting to torture and
still do willfully to inflict extra suffering.

Opposition to Capital Punishment

Last November 12 - 14, the Campaign to End the Death
Penalty's annual convention was held in Chicago, featuring anti-death penalty/anti-criminal
injustice workshops, strategizing and discussions on abortion rights, and
more, including opposition to life without parole (LWOP), other harsh sentences,
police brutality, wrongful convictions, and other unjust acts.

The Universal Declaration of Human Rights and other international
human rights laws recognize the dignity of life and right not to be subjected
to cruel, inhuman or degrading treatment.

On November 15, 2007 and again on December 18, the UN
General Assembly adopted Resolution 62/149, proclaiming a global death
penalty moratorium. Proposed and sponsored by Italy, its Foreign Minister
Massimo D'Alema said, "Now we must start working on the abolition
of the death penalty."

Resolutions, however, aren't enough, especially given
America's attitude with the world's largest prison population, a giveaway
to its disdain for people of color, the poor and disadvantaged, many on
death row unjustly.

Wrongfully Convicted Kevin Cooper

One of many, Judge William A. Fletcher addressed his
case on April 12, 2010 in the inaugural Gonzaga University School of Law
Justin L. Quackenbush lecture. Focusing on capital punishment, he asked:
"Where have we been? Where are we now? And where do we go from here?"

Reviewing America's modern history, he cited Furman v.
Georgia (1972, cited above). Also, the 1976 Gregg decision (explained above).
He then called America "unusual among industrialized nations,"
only Japan and China among them retaining the death penalty. All European
Convention of Human Rights signatories renounced it, including Western,
many Eastern European states, and Central Asian ones.

In America, he discussed state differences and High Court
decisions since Furman and Gregg. In Atkins v. Virginia (2000), it ruled
executing a mentally retarded person unconstitutional. In Roper v. Simmons
(2005), it prohibited executing anyone under 18 at the time the crime was
committed. In Kennedy v. Louisiana (2008), it extended its 1977 Coker v.
Georgia ruling that held capital punishment for adult rape to include children.

Nonetheless, America's death penalty system changed little
since Gregg, empowering states to use it. Citing pro and con arguments,
he "return(ed) to the theme of Furman" that struck down capital
punishment nationally, the Court concerned that sentences were handed down
capriciously, arbitrarily and unfairly.

Yale Law School Professor Charles Black, in his book
"Capital Punishment, The Inevitability of Caprice and Mistake"
called capital punishment fatally flawed, saying:

There are some "hanging prosecutors, hanging juries,
hanging judges, and hanging governors. But, overwhelmingly, the trouble
is not in the people but in the system - or nonsystem."

From his own bench experience, Fletcher expressed similar
concerns, citing Kevin Cooper's case as one example. On May 11, 2009, he
was among eight dissenters on a 27 US 9th Circuit Court of Appeals panel
voicing opposition to his guilt, saying in a joint statement:

"There is no way to say this politely. The district
court failed to provide Cooper a fair hearing and flouted our direction
to perform" the proper tests. It "also impeded and obstructed
Cooper's attorneys at every turn as they sought to develop the record."
Unreasonable testing conditions were imposed, as well as "refused
discovery that should have been available as a matter of course, limited
testimony that should not have been limited, and found fact unreasonably,
based on truncated and distorted record."

"The most egregious, but by no means the only, example
is the testing of Cooper's blood on the t-shirt for the presence of EDTA.
(The district court) so interfered with the design of the testing protocol
that one of Cooper's experts refused to participate in the testing. (It
let) the state-designated representatives (choose) samples to be tested."
Cooper's experts were refused the right to participate in choosing samples
or "even to see the t-shirt."

Yet the test result showed "an extremely high level
of EDTA in the sample that was supposed to contain Cooper's blood. If that
test result was valid, it showed that Cooper's blood had been planted on
the t-shirt, just as Cooper maintained."

Fletcher knows that Cooper, a Black man, was bogusly
convicted and imprisoned for a multiple homicide he didn't commit. Yet
since June 1983, he's been incarcerated and is now on death row at San
Quentin State Prison, CA, a victim of American injustice.

University of Denver Professor Sam Kamin studied California
Supreme Court decisions from 1976 - 1986 (a liberal period under Chief
Justice Rose Bird). He learned that the Court found constitutional errors
in 60% of capital cases it reviewed, 70% of which were "non-harmless,"
resulting in an overall 42% reversal rate.

He then studied the 1986 - 1996 period (under Chief Justice
Malcolm Lucas), when the constitutional error percentage was 55%. The Court,
however, ruled most of them harmless, reversing only 4% of cases overall.
As a result, nearly all innocent victims were denied justice, Fletcher
believing the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA)
was a key reason why, saying:

"If you have been wondering why Kevin Cooper is
still on death row, a significant part of the answer is AEDPA," adding,
"Fifty years ago, a clemency plea to a governor in a capital case
meant something. Governors took seriously their responsibility to decide
whether a death sentence should be carried out."

In recent decades, notably post-9/11, "clemency
pleas have been a useless exercise. Governors, sensing political vulnerability....almost
never grant" it. Further, "we know that poverty and race make
a difference." As a result, "racial minorities make up a disproportionate
percentage of death row inmates."

"To state the most alarming problem, there is not
only a chance that we have executed, and will execute, (innocent) people....There
is a virtual certainty that we have done so, and if the system remains
as it is, that we will do so in the future."

Under America's capital punishment system, consistency
and evenhandedness aren't possible, or as Professor Black explained: The
possibility of judicial fairness for accused minorities is as likely his
"learn(ing) to speak decent Japanese by the end of the month."

In his separate Furman v. Georgia opinion (1972), Justice
Thurgood Marshall said if ordinary people knew all the facts in capital
cases, they'd find it "shocking to (their) conscience and sense of
justice," and thus flatly unconstitutional.

Fletcher shares that view, adding:

"I think that sooner or later, probably not in my
lifetime, but perhaps in some of yours, we will abolish the death penalty
in this country. Perhaps, we, as a country, will eventually have seen enough"
injustice, mostly affecting society's poor, disadvantaged, and unwanted,
Kevin Cooper a notable example.

Stephen Lendman lives in Chicago and can be reached at
lendmanstephen@sbcglobal.net.

Also visit his blog site at sjlendman.blogspot.com and
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